Regina v Heslehurst

[1999] NSWCCA 183

CITATION:	Regina v Heslehurst [1999] NSWCCA 183
FILE NUMBER(S):	CCA 60187/98
HEARING DATE(S):	30 June 1999
JUDGMENT DATE:	30 June 1999
PARTIES :	Regina v Maxwell John Heslehurst
JUDGMENT OF:	Grove J at 1; Abadee J at 15; Barr J at 16

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/21/1023; 97/21/0338
LOWER COURT JUDICIAL OFFICER:	Graham DCJ

COUNSEL:	P.G. Ingram (Crown) No appearance of Appellant
SOLICITORS:	S.E. O'Connor In person
CATCHWORDS:	Criminal Law and Procedure - Sentence - Appellant Does Not Appear - No Substance Apparent In Written Submissions
DECISION:	Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

60187/98

GROVE J
ABADEE J
BARR J

30 June 1999

REGINA v MAXWELL JOHN HESLEHURST


JUDGMENT

1    GROVE J: The appellant, Maxwell John Heslehurst, appeared before his Honour Judge Graham in the Parramatta District Court where he was sentenced in respect of three counts in an indictment alleging obtaining money by deception.

2    On that occasion, in respect of one of the counts in the indictment two form 1 documents containing a further forty charges of obtaining money by deception and one charge of failing to appear were taken into account.

3    The result of the appellant's appearance was that his Honour imposed an effective sentence of three years imprisonment, comprising minimum and additional terms of eighteen months each respectively. The minimum term was ordered to commence on 18 November 1997 and expire on 17 May 1999. The applicant was ordered to be released at the expiry of the minimum term. That time has passed and we were informed that the appellant is at large.

4    The appellant has been notified of the listing today. It might be recorded that this appeal was previously listed before the Court on 3 March 1999, whilst the appellant was in custody. He did not appear on that occasion as information was received from the prison that he had been admitted to hospital and was incapable of travelling to court. By coincidence I was a member of the court constituted on that occasion.

5    The appellant has been called three times today, once at 10 a.m., again at 11 a.m. and finally at 12.15 p.m. He has not appeared on any occasion.

6    The appellant, in response to the directions of the Registrar, has supplied written submissions. It does not appear that the appellant had legal representation and it was anticipated that he would appear for himself in this appeal.

7    In those circumstances the appeal may proceed upon the written submissions which have been received. It is unnecessary to detail all of the offences. One example will suffice. It was the modus operandi of the appellant to approach people with an assertion that in his employment as a debt collector he had available repossessed motor vehicles which he was prepared to sell for the amount alleged to be outstanding pursuant to hire purchase agreement. There were in fact no such vehicles, but on many occasions he obtained money from would-be purchasers.

8    The appellant pleaded guilty before the District Court. It is perhaps sufficient to indicate the posture then adopted to recite the content of brief cross-examination by the Crown Prosecutor when the appellant gave evidence in mitigation. That evidence was as follows:
"Q. You have pleaded to three counts presently before the court?
A. Yes.
Q. And you were out on bail on that eventually?
A. Yeah, I believe, yeah, I'm not sure which is which any more.
Q. And you went out and systematically duped people?
A. Yes.

Q. To obtain further money?
A. Yes.

Q. You had no intention of delivering any of the goods that you had promised?
A. No, none whatsoever.

Q. And in each one of those cases there was a total of 45 counting (sic) you took advantage of those people whether they could afford it or not?

A. Yes, virtually, yes. I can't argue with you. What you are saying is the truth."

9    The appellant's record shows that he has been, over many years, a persistent fraudster. These offences are further manifestations of that activity.

10    In the written submissions forwarded to the Court the appellant has made assertions that the guilty plea entered was done so at the behest of the Director of Public Prosecutions on the promise of a benefit to him in sentencing arrangements. He complains that this was not adhered to. He submits this with an assertion that there had been some agreement between the DPP and his lawyer as to the “amount of charges” (to use his expression) that were put before the Court. Again he complains this did not happen.

11    As best those grounds can be understood, they would appear to be of some challenge seeking to go behind the pleas of guilty entered in the District Court. There is no evidence whatever to support the assertions in the written submissions and, for my part, I would not grant the appellant leave to rely upon them.

12    Other matters raised in the written submissions refer to the appellant's state of health which, it is claimed, was not fully taken into account, and further, the appellant states that the sentencing Judge did not take into account that whilst in custody the appellant's incarceration would be in maximum security. As best this last proposition can be understood, it is a reference to the appellant's medical conditions and the anticipated consequence that he would spend his time in custody probably in a prison hospital, rather than in places of lesser security.

13    In fact, the appellant's asserted medical condition was the subject of evidence below and there was considerable reference made to it by the learned sentencing Judge in his remarks on sentence. Not only is it unsupportable to suggest that his Honour did not take those matters into account, or even fully into account, it is apparent that his Honour gave the appellant considerable lenience in respect of those matters. Indeed, speaking for myself, I regard the appellant as having received a surprisingly generous amount of lenience at first instance.

14    In my view there is no substance in this appeal. I propose that the appeal and the application for leave to appeal against sentence be dismissed.

15    ABADEE J: I agree.

16    BARR J: I also agree.

17    GROVE J: The orders of the Court, therefore, will be as I have proposed.
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